Rowe v Livingstone Shire Council
[2005] QPEC 34
•12 May 2005
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Rowe v Livingstone Shire Council & Anor [2005] QPEC 034
PARTIES:
AJP ROWE
Appellant
v
LIVINGSTONE SHIRE COUNCIL
Respondent
andCAPRICORN DEVELOPMENTS PTY LTD
Co-respondent
FILE NO/S:
Appeal No D43 of 2004
DIVISION:
Planning & Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Rockhampton
DELIVERED ON:
12 May 2005
DELIVERED AT:
Brisbane
HEARING DATE:
20, 21 April; written submissions 5 May 2005
JUDGE:
Skoien SJDC
ORDER:
Appeal dismissed
CATCHWORDS:
“Rezoning” rural to residential; conflict with Transitional Strategic Plan; need; traffic
COUNSEL:
Appellant in person
Mr SP Fynes-Clinton for respondent
Mr W Cochrane for co-respondent
SOLICITORS:
King & Co for respondent
Robert Harris & Co for co-respondent
This is an objecting submitter’s appeal against the decision of the Council to allow a material change of use (“MCU”) of land to facilitate the creation by Capricorn of residential lots. Another appeal (by Capricorn) against some of the conditions imposed by the Council on the reconfigured land has been settled.
The Site
The site, a roughly square piece of land containing 4.05 ha., is at the north-east corner of the intersection of Pacific Heights Road and Armstrong Road, Pacific Heights, Yeppoon. Pacific Heights Road which takes a 90º turn at the intersection from south-north to run east-west, borders two sides of the site, each of about 125m. in length.
The site currently is vacant land on which stands a semi-derelict house. It slopes slightly downhill from south to north and contains some trees and an agricultural dam. It once was used for the growing of pineapples but that use ceased some fifteen years ago. It commands views (subject to the presence of houses to the north and east) of the ocean and the islands of the Keppel group.
The proposal for the site is to create 42 Residential A lots to be released progressively. There is no suggestion that the land is unsuitable, in a physical sense, for the particular reconfiguration layout which is proposed.
The Locality
The area is about 3km north of Yeppoon township and is approached by the use of Farnborough Road which follows the coast, then a left turn into Pacific Heights Road which is at present the main feeder road to the seaside residential area in the locality of the site, the suburb of Pacific Heights.
Immediately to the south and east of the site the land has been subdivided into residential lots in four separate subdivisional estates approved in 1993/4 and progressively developed and released for sale. On both sides of Pacific Heights Road some of the lots have now attractive houses. Immediately to the south of the site, while the individual lots have been sold, quite large areas of residential land are largely unbuilt on. There are about 380 of such lots. Much of that land is moderately steeply sloping so that houses built there will have good ocean views. Land to the west of the site is used for rural or rural residential purposes and some areas of this are the subject of material change of use (to residential use) applications.
At the north-east corner of the site, where Pacific Heights Road makes its 90º turn to the west, is a T junction with Armstrong Road which runs off to the east for a hundred metres or so. Thereafter, while it is dedicated through to Farnborough Road, it has not been constructed.
Planning Legislation
The current planning scheme for Livingstone Shire was gazetted in 1991 and is thus a Transitional Planning Scheme under the provisions of the Integrated Planning Act 1997 (“IPA”). Under the 1991 Scheme the site is in the Rural B zone. While it is difficult to be precise because of the scale of the relevant non-cadastral map, all parties agree that under the Strategic Plan the site lies just within the Rural Preferred Dominant Land Use (“PDLU”). Land further to the south is within the Residential PDLU. It is not possible to say precisely how far the boundary between the two areas is from the site but it is clearly a matter of a few hundred metres rather than kilometres. Apart from the site, more than half of the 380 lots referred to in para [6] are within the Rural designation.
Section 1.1. of the 1991 Scheme provides that:
“the preferred dominant land uses have been determined in relations to the principal aim which is to promote the orderly development of the Shire so as to enhance the social and economic well-being of the existing and future population of the Shire of Livingstone.”
The Rural PDLU has as its aim:
“to protect and encourage primary industry in the shire and to provide for the needs of people supported by primary industry.”
and has the objective:
“to protect valuable agricultural land from pressure for non-agricultural uses.”
Under s.6.1.30(3)(a) of IPA the MCU application is to be assessed against the provisions of s.4.4 of the repealed Local Government (Planning and Environment) Act 1990 (“P&E Act”), that is, as if it were a re-zoning to the Residential A zone.
Section 1.3.5.1 of the Strategic Plan set a planning horizon for the 1991 Scheme at year 2001. That horizon has now been overtaken by some four years. An IPA compliant scheme is well into the course of preparation and should come into operation within the next few months from now. In the draft IPA scheme the site is within the Rural zone. Some weight should be placed on the draft IPA scheme but with the caution that the terms it will contain when gazetted cannot be predicted with certainty. They may well differ in important respects from those in the draft. For example, they may reflect the motion of the Council passed on 27 May 2004 which created a Strategic Expansion, Map 1 indicating the decision of the Council that an area which includes the site ought to be indicated as an area for expansion of the urban area. Where, as will appear, the land is arguably inappropriately designated in the draft Scheme such an indication is at the very least a factor which argues against placing much weight on that draft designation.
The issues
The issues identified by the parties to the appeal were:
(a) Conflict with the Strategic Plan
(b) Need
(c) Adverse Traffic Impacts
(d) Increased Need for Facilities
(e) Stormwater
and the onus of proof rests on Capricorn (IPA s.4.1.50(2))
Conflict with the Strategic Plan
The provisions I have cited in paras [8] - [10] make it clear that this proposed rezoning, from the Rural B zone to a Residential zone, is in conflict with the 1991 Strategic Plan. Of course such a conflict invariably arose in any re-zoning application; indeed it was why rezoning applications were made.
Where there is an identified conflict with the planning scheme, s.4.4(5A) of the P&E Act (which is applied by s.6.1.30(3)(a) of IPA) is material. It provides:
“(5A) The local government must refuse to approve the application if:
(a) the application conflicts with any relevant strategic plan or development control plan; and
(b) there are not sufficient planning grounds to justify approving the application despite the conflict.”
In Weightman v Gold Coast City Council 121 LGERA 161 at 173 Atkinson J said:
“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s.4.4(5A)(b) of the P&E Act, the decision maker should:
1. examine the nature and extent of the conflict;
2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”
As Mr Gannon says in his town planning report, a Strategic Plan does not confer land use rights but indicates broadly what is contemplated for future development. It is obvious that such direction may prove to be worthy of being followed faithfully but it frequently happens that the passage of time shows that the direction becomes less reliable and, in fact, has been departed from. In this case, for example, the 1991 Strategic Plan expected that the urban area of The Caves would be likely to grow at a rate much greater than Emu Park. The reverse has proved to be true. Then, the actual population growth in the shire, as at 1996, had exceeded what was predicted in the Strategic Plan. Of particular relevance to this appeal is the fact that more than 50% of the developed residential suburb of Pacific Heights, which obviously provides attractive living sites, is as Ms Auld demonstrated outside the Strategic Plan residential area. Most of the residential lots which have been created over the past decade have been sold. It is true that many of those have not yet been built on but in my opinion little should read into that. The evidence suggested that the main reason for that could be the difficulty of obtaining builders. Then it may be the owners do not yet want to re-locate to there. Or perhaps the owners wish first to pay off the substantial purchase prices. Nor does the fact that there are lots for sale (or re-sale) particularly surprise me. There was certainly no evidence to satisfy me that the existing new residential areas of Pacific Heights are stagnant. Indeed the Capricorn Survey Consultants document (ex.12) shows that virtually all created lots up to 2001 now contain a house. Nearly half of the lots created in 2002 contain a house. Only those created in 2003/4 remain substantially vacant. And the population of Pacific Heights has grown from 182 in 1993 to 434 in 2004.
Undoubtedly Yeppoon generally has sustained a high rate of growth since 1996, the first year recorded in the Queensland Government Urban Residential Land Activity Fact Sheet, exhibited to an affidavit of Mr Rowe. From 1996 to 1998 the annual lot registration was about 90 and the dwelling approvals ranged between 333 and 317. From 1999 to 2002 lot registrations fell markedly (only 2 in 1999, 55 – 70 in the other years), yet dwelling approvals for 1999 were 230, were 331 in 2000, were 172 in 2001 and were 239 in 2002. In the last two years of the survey (2003 and 2004) lot registrations were 209 and 335 respectively; dwelling approvals were 311 and 338 respectively. In 2004, 86.7% of the 338 dwelling approvals were for separate houses.
Mr Rowe also exhibited to an affidavit a document obtained from the Council showing dwelling house building approvals in the Shire, broken down into geographic divisions. In the year 2003/4, 148 approvals were in the division which includes the site out of a Shire total of 260. In 2002-3 the comparison was 156 out of 268. In 2001/2 it was 120 out of 216. In 2000/1 it was 66 out of 139. In 1999/2000 it was 161 out of 298. Very clearly the relevant area has become the preferred residential house growth area of the shire.
Were the site to be in an isolated area, distant from any residential areas, then one would obviously question the planning justification for including it in a residential zone. That is not the case here. This site can be seen to be a modest expansion of an existing residential area which the Council has progressively permitted over the past decade (notwithstanding the fact that much of those permitted areas was in the Rural designation) to which the purchasing public has responded positively. So the conflict, in the sense of the dedication of the site to residential uses seems to me to be quite minor.
What of the conflict in the sense of the loss of the site to the rural B zone, with reference to the rural PDLU cited in para [10]? The site is a small area which has not been farmed for fifteen years. It is not valuable agricultural land. It is very doubtful that it could be farmed in isolation and certainly no possible profitable rural use was suggested in evidence. Mr Rowe suggested a hobby farm but notoriously that use is more residential than rural and I cannot conceive it to be capable of being described as an example of “primary industry … to provide for the needs of people supported by primary industry”. See para [10]. It was, I understand, farmed for pineapples as an adjunct to a larger farm further west on Pacific Heights Road but that use finished fifteen years ago. And given that there are now, as a fact, residential areas to the immediate south and east, it is easy to conceive the possibility of serious amenity conflicts relating to such things as noise, spray drift, dust and the like. So the conflict, in the sense of loss to the rural zone is also minor.
It seems to me that to classify the conflict as minor pays proper attention to the matters discussed in para [12]. The 1991 Scheme has been overtaken by history and many of its prognostications shown to be ill-founded. What the new IPA Scheme will say about Pacific Heights (including the site) is unclear but there is some reason to think that it will recognise the trend and at least provide an area, including the site, to act as a land bank for urban expansion. But, recognising that there is a conflict with the Strategic Plan I must turn to the issues to see whether they reveal any planning grounds which, applying the Weightman test, justify the conflict sufficiently to approve the development application notwithstanding the conflict.
Need
It is a basic planning principle that a council should, by its planning provisions and by giving appropriate approvals, maintain an adequate “bank” of land for required residential use now and in the reasonably proximate future. This “bank” prevents two things, first the undesirable inflation of prices caused by shortage of available land and second, the turning away of would-be residents of the shire. And of course it also reflects the general duty of a council to provide for the pleasant amenity and lifestyle of the shire residents by making available a choice of living situations of varying qualities and prices. This is an aspect of what is traditionally described as “need” in a planning sense.
Planning “need” does not (contrary to what Mr Rowe appeared to submit) mean pressing need. Rather:
“ ‘Need’ in cases such as this, does not mean pressing need, critical need, widespread desire, or anything of that nature. A thing is needed if its provision, taking all things into account, improves the physical well-being of the community. See Cut Price Stores Retailers & Ors v Caboolture Shire Council (1984) QPLR 126 at 131.” (Prime Group Properties Limited v Caloundra City Council and Darracott & Ors (1995) QPLR 149)
And:
“ “Need” in planning terms is a relative concept. It does not connote pressing urgency but rather relates to the general well-being of the community. A use would be needed if it would, on balance, improve the services and facilities available in a locality. See Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58 at 60.” (Prime Group Properties Limited v Caloundra City Council and Darracott & Ors (1995) QPLR 149)
And:
“Fundamentally, it appears to have been accepted that the issue of need may be decided in favour of a proponent where it is shown that the community’s (as distinct from the proponent’s) interests would be advanced by making the amendment sought.” Calligaris & Ors v Bundaberg City Council & Ors (2002) QPELR 213.
In this appeal the matters I have set out in paras [17] - [19] very clearly establish that there is a need, in the planning sense, for this development. This planning ground falls within the second criterion identified in Weightman because “need” is expressly called up by s.4.4(3)(b) of the P&E Act as a matter to be considered on a re-zoning application.
Adverse Traffic Impacts
On the expert evidence of Mr Epell I am satisfied that the proposed internal road design for the site is a proper one. When fully inhabited the forty two allotments will generate about 420 vehicles per day and at each of the peak periods, about forty-two vehicle movements. These are very low figures indeed and will cause no traffic or amenity difficulties. Eight lots only will have direct access to Pacific Heights Road and all other lots to two internal cul-de-sacs which will access Pacific Heights Road via a single street. Sensibly, provision is made for future connection with land to the west, should that land be developed for residential use.
Conditions imposed on the development will require formed footpaths on its boundaries. It is the Council’s intention to seal the footpaths to provide a shared 1.2m pedestrian/bicycle way.
The sealed width of Pacific Heights Road at the site on the eastern boundary is 7m. It is a two lane road with no kerb or channel construction. A condition will require Capricorn to construct this section to 8m with kerb and channel to both sides. Further to the south Pacific Heights Road is 8m sealed, with constructed kerb and channel. To the west the road is a sealed one lane road only but the conditions of development provide that Capricorn must construct kerb and channel on its northern boundary and provide for ultimate widening of the sealed surface to 10m when future development on the northern side of the road occurs.
Mr Rowe regards the sealed width of Pacific Heights Road as too narrow for safety, especially when a car is parked at the kerb and more especially if two cars are parked opposite each other. However it is the evidence of the experts that the 8m. width is considered to be a desirable thing in residential suburbs because it acts as a speed reduction device. I accept that.
There is a crest in Pacific Heights Road just to the south of the site and Mr Rowe was critical of the lack of visibility for approaching vehicles and the consequent lack of safety. However I am satisfied that although the road merely qualifies at the minimum end of the applicable standards, it nevertheless does qualify. None of the traffic experts considered it to create an unacceptable risk and I accept that.
Based on the above I conclude that the proposed development will not create any adverse traffic impacts. That of course is not a positive planning ground in favour of the proposal. It is at best a neutral factor. But, rather unusually, the proposal actually will help to bring about an improvement in the local traffic picture (see paras [33] and [35]).
While the junction of Pacific Heights Road and Farnborough Road has functioned safely to date it is agreed by all that it is less than desirable and should not be called upon to carry very much extra traffic. The long term solution has been seen to be that of constructing Armstrong Road from Farnborough Road to join Pacific Heights Road so as to form the main access to the residential area of Pacific Heights and points west.
That project is now part of the Council’s budget for the financial year 2005/6. I think it highly probable that the work will be carried out in that period and although to begin with it will be only a rather narrow road it will greatly improve the existing situation. An agreed condition of the Council’s consent is that Capricorn contribute $2000 per lot for this upgrade. So this development can be seen to be contributing to local road network improvement and that contribution seems to me to be a positive planning consideration in favour of the Capricorn development.
Mr Rowe’s argument on this is a little puzzling. He seems to be submitting that the Capricorn development is somehow responsible for the plans to construct Armstrong Road with the consequence that the ratepayers of the Shire will suffer. The evidence does not bear that out. Rather I conclude that the Council, under some pressure from the Main Roads Development, has faced the inevitable. Whether the Capricorn development provided some impetus to this end I cannot say but it seems obvious that an extra forty two residential blocks in the area would have provided only a very minor impetus. It did not create a demand for a hitherto unplanned construction. And the contribution which Capricorn is to pay towards the works in fact lessens the demand on others.
In a more tangible way Capricorn has agreed to a condition which will positively improve the local traffic scene. It will re-construct the existing Pacific Heights/Armstrong Roads junction (which at present is that of an acute angle) so that it is of a more regular and safe configuration. It will have the effect of reducing traffic speed for vehicles southbound towards the crest referred to in para [30]. It is very much a positive contribution to local traffic safety and must qualify as a planing ground supporting the Capricorn proposal and weighing against the conflict with the strategic plan, at least within the third criterion identified in Weightman.
Increased Need for Facilities
The particulars of this issue identified pathways and bikeways. In fact, as I have said, the Council is planning both for this area and under a condition Capricorn is to contribute money for that when it is constructed in an integrated way. None of the other particularised matters call for detailed attention. All normal suburban services are available. Capricorn will build a temporary sewerage pump station and will no doubt remove it if it is no longer required.
Mr Rowe was critical of the provision for parkland in the conditions. It is obvious that the site is too small to dedicate any useful parkland. Instead the usual course was followed of a money contribution for parkland elsewhere. That seems to me to be the only course available and to be satisfactory.
Stormwater
No point of any note was made of this issue. Capricorn is making, under a condition, a substantial cash donation to improve downstream drainage.
General
Mr Rowe is not a lawyer and could not have been expected fully to understand such things as the rules of evidence and procedure. Nevertheless he was at all times courteous and helpful. And Mr Cochrane for Capricorn and Mr Fynes-Clinton for the Council were, within the limits of their duty to their clients, tolerant of his difficulties and helpful to him. But it must be said that much of what Mr Rowe placed before me in his written submissions was really his unsworn evidence or hearsay evidence and of course I am bound to ignore that. Much of his concern seemed to be about issues which were wider than and irrelevant to this appeal. As a qualified civil engineer, a former shire engineer for the Council and a local resident, his factual evidence was often very helpful to me. But being a litigant his professional opinions could not be accepted as expert evidence which is, by definition, impartial and unmotivated by personal interest.
Conclusion
Capricorn has satisfied me that the conflict with the Strategic Plan which this application creates is a minor one. There are planning grounds, particularly that of need and to a lesser extent the actual improvement to traffic, which are sufficient to justify approving the development despite the conflict.
The appeal is dismissed.
0
0
0